Nesbeth v Franklin Ave. Cluster
Annotate this CaseDecided on May 7, 2010
Civil Court of the City of New York, Kings County
Kisha Nesbeth, Gary Gill Jr. by his mother as Natural Guardian Kisha Nesbeth, and Justin Nesbeth by his mother as Natural Guardian Kisha Nesbeth,, Plaintiffs,
against
Franklin Avenue Cluster, MHR Management, Positive Pest Control, Nat Gonzalez, Jose Hernandez, Mr. Richard Jones, and Mr. Pinnock, Defendants.
095999/08
The plaintiffs were unrepresented.
Defendants Nat Gonzalez and Positive Pest Control were represented by Brian Meisner, ESQ., 530 Saw Mill River Road, Elmsford, NY 10523
Genine D. Edwards, J.
In 2009, the unrepresented plaintiffs commenced this action for personal injuries, failure to return property, property damage, loss of use of property and loss of time from work. Defendants Nat Gonzalez and Positive Pest Control moved to dismiss the action due to lack of personal jurisdiction. By order of this Court, dated March 2, 2010, a traverse hearing was held on April 28, 2010.
During the cross-examination of Joseph Hair, plaintiffs' licensed process server, defense counsel alluded to Positive Pest Control being a corporation by inquiring whether Mr. Hair served the Secretary of State, and if service upon same is the way a corporation should be served. However, Positive Pest Control failed to proffer one scintilla of evidence to establish that it was, in fact, an incorporated entity.
Upon direct examination, Mr. Gonzalez admitted that he owns Positive Pest Control and operates his business from his home, which is located at the address that Mr. Hair testified he served the summonses and complaints. When necessary Mr. Gonzalez pays independent contractors to perform the services for Positive Pest Control.
Unlike a corporation or a partnership or a joint venture or a limited liability entity, where
there is a president or treasurer or partner or perhaps several other officers or agents to receive
service of process, Mr. Gonzalez is the only person who has an affiliation to this home business.
Mr. Gonzalez admitted he is the sole owner of the business, he has no employees, and he
operates his business from his home. This Court finds that Mr. Gonzalez was doing business as
Positive Pest Control, thus service of process may be effectuated pursuant to CPLR §308.
This Court is persuaded that Mr. Hair properly served Positive Pest Control and Nat
Gonzalez by substituted service upon "Jane Doe", whose description fits Latoya Bennett,
defendant Nat Gonzalez's fiancé, who testified before this Court. This Court found Ms.
Bennett's testimony to be self-serving, and gave no probative value to Ms. Bennett's time sheet,
which was admitted into [*2]evidence.
Considering all of the credible evidence adduced at the hearing, the traverse is overruled as to both defendants. The motion to dismiss is denied in its entirety.
This constitutes the decision and order of this Court.
Dated: May 7, 2010
GENINE D. EDWARDS
Judge of Civil Court
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